FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 7, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-10783

Non-Argument Calendar

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D. C. Docket No. 06-00055-CR-T-17-TGW

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ELMO ANTONIO ALVARADO-FORBES, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

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(September 7, 2007)

Before ANDERSON, BARKETT and HULL, Circuit Judges.

PER CURIAM:

After pleading guilty, Elmo Antonio Alvarado-Forbes appeals his sentence
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of 135 months’ imprisonment for conspiracy to possess and possession with the

intent to distribute five kilograms or more of cocaine while aboard a vessel subject

to United States jurisdiction, in violation of 46 U.S.C. app. § 1903(a), (g), (j); 21

U.S.C. § 960(b)(1)(B)(ii); and 18 U.S.C. § 2. After review, we affirm.

I. BACKGROUND

While on routine counter-drug patrol with the United States Coast Guard

(“USCG”), the British Naval Vessel HMS Southhampton spotted a possible target,

the M/V Rampage, a Panamanian-flagged vessel. Pursuant to a consent to board

agreement, the USCG team boarded the vessel and discovered 118 bales of

cocaine, weighing 3,393.4 kilograms. Defendant Alvarado-Forbes was one of five

crew members on board and was the vessel’s motorman.

The Presentence Investigation Report (PSI”) assigned Alvarado-Forbes a

base offense level of 38, pursuant to U.S.S.G. § 2D1.1(a)(3) and (c)(1), based on

the 3,393.4 kilograms of cocaine found on the vessel. The PSI reduced AlvaradoForbes’s offense level by two levels, pursuant to U.S.S.G. § 2D1.1(b)(9), because

Alvarado-Forbes met the safety-valve criteria, and by three levels, pursuant to

U.S.S.G. § 3E1.1(a) and (b), for acceptance of responsibility. With a total offense

level of 33 and a criminal history category of I, the PSI recommended an advisory

guidelines range of 135 to 168 months’ imprisonment.
We review a district court’s determination of a defendant’s role in the offense for clear 1

error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). 

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At sentencing, Alvarado-Forbes objected to the PSI’s failure to recommend

a mitigating-role reduction pursuant to U.S.S.G. § 3B1.2. The district court

overruled his objection, noting that “3393.4 kilograms of cocaine is no small

amount.” The district court concluded that Alvarado-Forbes was an “average

participant” in the drug importation conspiracy and that there was no basis for a

mitigating-role reduction.

The district court adopted the PSI and imposed an 135-month sentence. 

Alvarado-Forbes filed this appeal.

II. DISCUSSION

On appeal, Alvarado-Forbes argues that the district court erred by denying

him a minor or minimal-role reduction because he was merely a mariner on the

vessel and not an organizer or leader.1

A minor participant is one “who is less culpable than most other participants,

but whose role could not be described as minimal.” U.S.S.G. § 3B1.2 cmt. n.5. A

minimal participant is one who “plays a minimal role in concerted activity” and “is

intended to cover defendants who are plainly among the least culpable of those

involved in the conduct of a group.” U.S.S.G. § 3B1.2 cmt. n.4. The defendant

has the burden to establish his role in the offense by a preponderance of the
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evidence. United States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en

banc). 

In determining whether a minor-role reduction applies, the district court

considers two principles: (1) the defendant’s role in the offense compared to the

relevant conduct attributed to him in calculating his base offense level; and (2) the

defendant’s role compared to that of other participants in the offense. Id. at 940-

45. When relevant conduct attributed to a defendant is identical to his actual

conduct, he cannot prove that he is entitled to a minor-role adjustment simply by

pointing to a broader scheme for which he was not held accountable. Id. at 941. 

Furthermore, “in the drug courier context, . . . the amount of drugs imported is a

material consideration in assessing a defendant’s role in [his] relevant conduct . . . .

[and] may be dispositive – in and of itself – in the extreme case.” Id. at 943.

Here, the district court did not clearly err in denying Alvarado-Forbes a

minor-role reduction. Under the first prong of De Varon, the district court held

Alvarado-Forbes accountable only for his actual conduct of participating in the

smuggling of the 3,393.4 of cocaine on the M/V Rampage. He was not held

accountable for a broader drug conspiracy. In addition, the substantial amount of

cocaine on the vessel was a material consideration.

Under the second prong of De Varon, Alvarado-Forbes was at least as
Because Alvarado-Forbes is not entitled to a minor-role adjustment, he is also not entitled 2

to a minimal-role adjustment. See U.S.S.G § 3B1.2 cmt. n.5. 

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culpable as the other members of the vessel’s crew who participated in the

smuggling conspiracy. Alvarado-Forbes claims on appeal that his sole purpose on

the vessel was “to be a live body on a boat” and “to make the vessel look like a

fishing vessel . . . .” Alvarado-Forbes failed to present any evidence to support this

claim at sentencing. See United States v. Trainor, 376 F.3d 1325, 1334 n.5 (11th

Cir. 2004) (“[A] defendant must provide evidence regarding mitigating

circumstances to support a district court’s downward departure.”). Furthermore,

even assuming arguendo that this was Alvarado-Forbes’s purpose on the vessel, it

would not make him a minor participant because concealing the illegal nature of

the vessel’s cargo would be vital to the success of the smuggling scheme.2

Alvarado-Forbes also complains that the district court did not consider on

the record all of the factors listed in U.S.S.G. § 1B1.3(a)(1) through (4) relating to

Alvarado-Forbes’s relevant conduct. See U.S.S.G. ch.3, pt. B, introductory cmt.

(“The determination of a defendant’s role in the offense is to be made on the basis

of all conduct with the scope of § 1B1.3 (Relevant Conduct), i.e., all conduct

included under § 1B1.3(a)(1)-(4), and not solely on the basis of elements and acts

cited in the count of conviction.”). However, there is no requirement that the

district court explicitly consider on the record all relevant conduct falling within
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U.S.S.G. § 1B1.3(a)(1)-(4). See De Varon, 175 F.3d at 940 (“[A] district court is

not required to make any specific findings other than the ultimate determination of

the defendant’s role in the offense.”).

AFFIRMED.